June 12, 2008

Dramatic Day at the Supreme Court

When Chief Justice John Roberts Jr. said from the bench this morning that Justice Anthony Kennedy had a decision to announce  and for several minutes thereafter  it was unclear which way the Supreme Court would go in the Guantánamo detainee case of Boumediene v. Bush. But when Kennedy, after describing the facts and legal issues paused, leaned forward and started talking about basic principles, it was clear: he had provided the fifth vote to declare that Guantánamo detainees have habeas corpus rights that were violated when Congress stripped courts of habeas jurisdiction in the Military Commissions Act of 2006. "Liberty and security can be reconciled," said Kennedy. "And in our system they are reconciled within the framework of the law."

Justice Antonin Scalia went next, summarizing from his dissent which was joined by Roberts, Clarence Thomas and Samuel Alito Jr. Scalia decried the Court's intrusion into military matters, declaring that "we simply have no competence" to second-guess military wartime decisions on the detention of enemy combatants. He noted that a released Guantánamo detainee was recently involved in a suicide bombing that killed Iraqi soldiers. "We will live to regret" the judiciary's "uninvited" intervention into executive wartime power, Scalia declared. The Court announced four other rulings today too, but none will have the impact of Boumediene.

Reaction is already coming in, fast and furious. "Today’s ruling reaffirms the vision of our founders, and helps restore the credibility of the United States as a leading advocate and model for the rule of law across the globe," said American Bar Association president William Neukom. "The Supreme Court has rebuked President Bush's vision of the presidency as an office of limitless power, and declared that the president of a free nation cannot simply lock people up and throw away the key like some third-world dictator," said People for the American Way president Kathryn Kolbert.

Legal Times colleague Joe Palazzolo reports that the U.S. District Court for the District of Columbia which now has habeas jurisdiction over the detainees as a result of today's ruling, is already responding to the decision. "I expect we'll call in the lawyers from both sides to see what suggestions they have for how we can approach our task most effectively and efficiently," said Chief Judge Royce Lamberth. Court officials say as many as 200 detainees have filed habeas petitions, and many were being held pending the Boumediene decision.

Comments

I only wish to add to the knowledge base of the idea's expressed by the Court including the dissent by referring to an early Virginia case that dealt with the rights of the people of Fairfax County who had been expatriated by the cession of part of the county to form the District of Columbia. These residents sued to have their rights enforced in Virginia. The Virginia Supreme court stated:

"There is no such exception to be found in the constitution of this commonwealth. That instrument, and the declaration of rights on which it is based, has no eye towards the subjects of foreign powers. It only purports to declare the rights, and settle the duties of those who are parties to the compact. There is not only no such exception in that instrument, but, on the contrary, the converse is explicitly declared and expressed. The declaration of rights is stated to have been made by the representatives "of the good people of Virginia;" and it is declared, "that these rights do pertain to them, and their posterity, as the basis and foundation of government." " Custis v. Lane, 17 Va. 3 Munf. 579, (1813).

The court above noted the long supported common idea that allegiance and protection are reciprocal duties.